The Court of Appeal has salvaged a Sh10 billion tender awarded to De La Rue International to print Kenya’s new currency.
A three-judge found an earlier court decision cancelling the tender faulty.
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High Court George Odunga had ordered that the tender be re-advertised as the whole process conducted by the Central Bank of Kenya (CBK) was null and void.
But judges Erastus Githinji, Asike Makhandia and Sankale ole Kantai ruled that Justice Odunga ignored the fact that the evidence relied on by activist Okiya Omtatah was expunged, hence his case had no basis.
“By considering the expunged tender documents, the judge misdirected himself, resulting in the unfair determination of the tender award in his judgment. Upon the documents being expunged, the petition, in our view, had no legs left to stand on,” they said yesterday in a verdict read by Justice Otieno Odek.
CBK welcomed the judgement, saying it would proceed “with all due haste” with the processes it had put in place for printing and supply of new generation bank notes.
“This legal challenge was the final hurdle stopping CBK from issuing the new generation bank notes. CBK will now reassess the timeline for the issuance of these bank notes,” said the bank in a press statement.
In the case, CBK told the court that the documents on the tender that Mr Omtatah relied on were illegally obtained as he never participated in the tendering process, nor was his company involved.
Through lawyers Ochieng, Onyango, Kibet and Ohaga Advocates, the apex bank argued that the seven documents attached to the petition filed this week were not obtained through the required legal avenues.
“The petitioner was not a participant and was not one of the entities pre- qualified for the tender invited to submit the tender or participate in the issued tender,” said the lawyers.
“The tender documents annexed to the supporting affidavit are confidential documents that are protected by Section 67 of the Public Procurement and Disposal Act and cannot be disclosed except by an order of this honourable court.”
Former Attorney-General Githu Muigai had accused the activist of blowing hot and cold as he had filed another suit in a bid to force CBK to print the new currency.
He argued that none of the firms that lost the tender appeared in court to challenge the contract.
“It is in public record that the petitioner is litigating on the failure of the first respondent (CBK) to issue new currency notes. That it is the petitioner who now seeks to stop the procurement process towards the printing of new currencies and... speaks of bad faith and an attempt to direct the procurement process,” said the AG.
The new currency tender has been in the corridors of justice three times. The first case was filed by Omtatah seeking to stop the Government from using current notes in circulation and be forced to print the new ones.
De La Rue also went to court to stop the process stopped after it found out that it was not on the list of pre-qualified companies for the tender.
In the case, the firm accused CBK of discrimination as it allegedly invited bids from international companies but locked out the local industry.
CBK told the court that there were no local firms that could print the new currency notes in accordance to its specifications.
“There are no citizen contractors in Kenya that can print bank notes as per specifications of the respondent. Materials and other inputs relating to currency production are not available locally,” said the bank.
The UK-based firm argued that it had 25 years experience in printing money.